Opinion
CIVIL ACTION NO: 03-1550, SECTION: "R"(2)
January 30, 2004
ORDER AND REASONS
The defendant, the United States of America, moves for summary judgment on the grounds that plaintiff's remedy is limited to Workmen's Compensation benefits. For the following reasons, the Court GRANTS defendant's motion.
I. BACKGROUND
Satellite Services, Inc. is the Base Operating Support contractor for Naval Support Activity, New Orleans, Louisiana (NSA NOLA). SSI contracted with the Navy to perform recurring work, service calls, preventive maintenance inspections, and testing of electrical systems and equipment at NSA NOLA. SSI's contract also requires it to provide and maintain workers' compensation insurance, for which the United States reimburses SSI for its allocable share of the costs.
In March 2002, SSI hired plaintiff Steven Headrick as an electrician. At the time that SSI hired him, Headrick had ten years of experience as an electrician, and SSI considered him a qualified, high-voltage electrician and Safety Observer. On June 2, 2002, SSI assigned Headrick to perform preventive maintenance work on two substations at NSA NOLA.
Headrick was injured at the west substation where he acted as the Safety Observer, and his co-worker, Vern Bishop, performed the preventive maintenance work, Before they entered the west substation, Bishop opened two switches. These switches take the west substation off-line, rerouting power to the other substations. Both men then entered the substation.
Headrick positioned himself approximately eight feet from the transformers on the west side of the substation. Bishop then opened a switch at the southwest corner of the substation that shuts off the energy leaving the substation, but leaves it energized. After he opened the switch, Bishop crossed behind Headrick and went to the other switch at the northwest corner of the substation. Before Bishop had opened the switch and secured power, Headrick allegedly walked between two transformers where he encountered an overhead 7,620-volt jumper cable that electrocuted him. Headrick allegedly suffered significant internal injuries, including abnormal heart rhythm, nerve injury to the peripheral nerves, and loss of cognitive function.
In May 2003, Headrick sued the United States and the United States Department of Navy under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Plaintiff alleges that defendants are liable to him in negligence for failing to install the transformers and the wiring at the substation in compliance with national and local electrical codes.
The United States now moves for summary judgment. The parties do not dispute that at the time of his injuries, Headrick was employed by SSI, which was under contract with the Navy to perform preventive maintenance work. Defendant contends that based on the above allegations, the United States is Headrick's statutory employer under Louisiana state law. As such, defendant argues that it is liable to Headrick only under state workmen's compensation law and not for tort damages under the FTCA.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Analysis
The FTCA permits recovery in tort against the United States "under circumstance where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Under Louisiana law, the principal for whom a contractor is working is not liable in tort for negligent injuries suffered by the contractor's employees in the scope of that work if the contracted work is part of the principal's "trade, business, or occupation." See LA. REV. STAT. §§ 23:1032, 1061. In such circumstances, the principal is considered the injured employee's statutory employer and is liable to pay the injured employee any worker's compensation that the principal would have been liable to pay had the injured employee been employed by him. See LA. REV. STAT. § 23:1061. The same rule applies to the United States when it is deemed to be the statutory employer of the contractor's employee. See Commercial Union Ins. Co. v. United States, No. CIV. A. 97-3406, 1998 WL 637379, at * 5 (E.D. La. 1998). As a statutory employer, the United States enjoys the same immunity from suit in tort that the employer does. See Roelofs v. United States, 501 F.2d 87, 93 (5th Cir. 1974) (finding the United States immune as statutory employer when it requires contractor to maintain worker's compensation insurance at government's expense).
The test for determining whether the work performed by the contractor is part of the principal's "trade, business, or occupation" under Louisiana law has undergone many permeations over the years. See Jackson v. Latini Mach. Co., 960 F. Supp. 1043, 1046-47 (E.D. La. 1997) (tracing the history of the definition of statutory employer). Originally, the Louisiana courts applied the integral relationship test, which requires than the work of the contractor be an integral part of the work of the principal. See Thibodaux v. Sun Oil Co., 49 So.2d 852 (La. 1950). In Berry v. Holston Well Service, Inc., the Louisiana Supreme Court abandoned the integral relationship test and devised a three-tier test, which asked (1) whether the work is specialized; (2) whether the work is routine, whether the principal has the personnel or equipment necessary for the work, and what is the industry practice; and (3) whether the principal was engaged in the work at the time of the alleged incident. 488 So.2d 934, 937-38 (La. 1986). In 1989, the legislature amended the definition of statutory employer, returning to the original integral relationship test. However, in Kirkland v. Riverwood Intern. USA, Inc., the Louisiana Supreme Court reasoned that by amending the statute the legislature was responding to Berry's rule that a finding of specialization was determinative of the existence of statutory employment. 6S1 So.2d 329, 336-37 (La. 1996). Kirkland held that although courts may not use specialization as the sole factor to determine the existence of statutory employment, they may still consider it. See id. at 336. In 1997, the legislature once again amended La. Rev. Stat. § 23:1061, expressly noting that the provisions of the Act are intended to overrule Berry and Kirkland and are not retroactive. See 1997 La. Acts, No. 315, §§ 2-3. To determine which test to use, Louisiana courts look to the time of injury. See Emery v. Owens Corp., 813 So.2d 441, 447 (La.Ct.App. 2001) (holding that Thibodaux's integral relationship test applied to injured worker's tort claim when worker inhaled asbestos fumes from 1965-1970).
Notwithstanding the inconsistencies of Louisiana law, when the alleged principal is a federal agency, the Fifth Circuit has consistently focused on the connection between the agency's work and the nature of the contract between the agency and the independent contractor to determine whether the federal agency was a statutory employer. See Chaline v. United States, 887 F.2d 505, 506 (5th Cir. 1989) ("[T]he more stringent definition of a statutory employer set out in Berry v. Holston Well Service does not apply when a governmental entity is the employer."); Hebert v. United States, 860 F.2d 607, 608 (5th Cir. 1986) (finding that the Berry case "does not modify the rule of Klohn v. Louisiana Power Light, 406 So.2d 577 (La. 1984), [and] Thomas v. Calavar Corp., 679 F.2d 416 (5th Cir. 1982), which analyze the statutory employer status of government entities."). As one federal court has stated, because the "United States is engaged in a vast number of trades and businesses pursuant to law," the court must focus on the "statutes setting forth the responsibilities of Government departments or agencies which contract the work, and the connexity between the work or business authorized and the work in which the independent contractor is engaged to perform." Cottrell v. J.A. Jones Constr. Co., 582 F. Supp. 75, 78 (W.D. La. 1984) (citations omitted). Courts generally sustain the statutory employer defense when there is a "relatively close nexus" between the work furthered by the injured employee and "one or more of the missions provided by law of the governmental agency in question." Rivera v. United States Army Corps of Eng'rs, 891 F.2d 567, 568 (5th Cir. 1990). Although plaintiff argues that there exist genuine issues of material fact as to, for example, whether SSI's contracted work was specialized and not within the scope of the expertise of the United States Navy, this factor is a Kirkland factor and not controlling under federal law when the employer is a government entity or agency. Contrary to plaintiff's assertions, the Court's focus must be "directed to the relationship between the independent contractor and the principal employer rather than the specific duties of the injured employee." Penton v. Crown Zellerbach Corp., 699 F.2d 737, 741 (5th Cir. 1983).
Here, defendant cites 10 U.S.C. § 5013 as the statute setting forth the appropriate mission of the government agency. Section 5013 provides that the Navy "is responsible for, and has the authority necessary to conduct . . . (12) [t]he construction, maintenance, and repair of buildings, structures, and utilities and the acquisition of property and interest in real property necessary to carry out the responsibilities specified in this section." 10 U.S.C. § 5013 (b) (12). Among the responsibilities specified in the section are training, servicing, mobilizing, demobilizing, administering, maintaining, and the construction, outfitting, and repair of military equipment. 10 U.S.C. § 5013 (5)-(11). The statute authorizes the Navy to perform maintenance of its buildings and structures in order to carry out its other legal responsibilities. As is stated by Lieutenant Commander Steven Zimmerman, "[c]onducting preventative maintenance on electrical substations is an integral part of the Navy's overall responsibility to maintain and repair utilities onboard Naval facilities as required by federal law." (Def.'s Mot. Summ. J., Ex. A). Since the Navy is responsible for maintaining its buildings and structures, when it hired an independent contractor to perform maintenance work, the contractor, SSI, simply performed the Navy's mission of maintaining the structural integrity of its substations. ( See id.). The Court finds a close nexus between SSI's preventive maintenance work and the Navy's responsibility to maintain and to repair utilities at Naval facilities.
Accordingly, the Court finds that SSI engaged in work that is part of the Navy's usual and customary business. Headrick injured himself while doing preventive maintenance work that SSI contracted to perform for the Navy. ( See Pl's Mem. Opp. Mot. Summ. J., Ex. A). The Court finds that as a matter of law the United States is Headrick's statutory employer. Plaintiff's tort claims are therefore barred by the statutory employer defense.
Plaintiff's reliance on cases such as Stephens v. Witco Corp., 198 F.3d 539 (5th Cir. 2000), and O'Keefe v. Warner, 288 So.2d 911 (La.Ct.App. 1974), is misplaced. Stephens is distinguishable on two grounds. First, in Stephens, the Fifth Circuit applied the eight-factor Kirkland test to determine whether the principal was the statutory employer of an employee injured in 1996, before the Louisiana legislature statutorily overruled Kirkland. 198 F.3d at 540-41. Here, plaintiff was injured in 2002 and Kirkland is therefore not controlling. In addition, the question before the court in both Stephens and O'Keefe was whether a private employer, not a governmental entity or a federal agency, was a statutory employer for the purposes of La. Rev. Stat. § 23:1061. 198 F.3d at 541-42; 288 So.2d at 913-14. As noted above, the Fifth Circuit has consistently held that the analysis to determine whether a governmental entity or federal agency is a statutory employer is different from that used to determine whether a private employer is a statutory employer. See Commercial Life Ins. Co., 1998 WL 637379, at *6 (citing Hebert, 860 F.2d at 608).
Plaintiff also argues that the work that caused his injury was not within the scope of the contract between SSI and the Navy because he alleges that his injury was caused by faulty installation of wiring and transformers that was done by some third-party naval contractor. Plaintiff misconstrues the worker's compensation doctrine. There is no doubt that Headrick was in the course and scope of performing preventive maintenance work under SSI's contract at the time he was injured, which is the relevant inquiry. Moreover, Louisiana courts have consistently held that La. R.S. § 23:1032, the worker's compensation statute, bars any tort claim against an employer by an employee injured in the course and scope of his employment. See, e.g., Martin v. Stone Container Corp., 729 So.2d 726, 728-29 (La.Ct.App. 1999) ("Since Stelly, however, the appellate courts have uniformly held chat the [1990] amended version of R.S. 23:1032 precludes any tort claim against an employer, even against an employer who has contractually assumed the owner's liability."). Therefore, La. R.S. § 23:1032 bars any tort claim plaintiff may assert against the United States.
III. Conclusion
For the foregoing reasons, the Court GRANTS defendant's motion for summary judgment and dismisses plaintiff's claims.