Opinion
Civil Action No. 03-2464 Section "T"(4).
September 28, 2004
Before the Court is a Motion for Summary Judgment (Document 9) filed on behalf of the Defendant, The Times-Picayune Publishing Corporation ("Times Picayune"). The parties waived oral argument and the matter was taken under submission on August 11, 2004. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
On September 1, 2002, at approximately 2:00 a.m., Dorothy Seal, resident of Picayune, Mississippi, who purchases, sells and delivers Times Picayune newspapers, sustained injuries after she became trapped by a conveyer which transferred newspapers from the inside of the distribution center to the plaintiff's truck. Following the incident, Ms. Seal began receiving workers' compensation and medical coverage from Liberty Mutual Insurance, the premiums for which were paid by Times Picayune.
Plaintiff has filed suit against Times Picayune seeking damages in tort. Defendant now seeks summary judgment on the grounds that Ms. Seal is limited to the remedy provided by the Louisiana Worker's Compensation Act (the "Act"), § 23:1021, et. seq. of the Louisiana Revised Statutes, and accordingly, that it is immune from the tort claims alleged by Ms. Seal. Def.'s (Mem. Supp. Summ. J. at 1.) Ms. Seal claims that at no time was she an employee of The Times Picayune, rather, that she was an "independent contractor" who did not spend a "substantial part" of her work engaged in "manual labor," and therefore, is not covered by the Act and is entitled to pursue this tort claim against the Times Picayune. (Pla.'s Mem. Opp. Summ J. At 3.)
III. LAW AND ANALYSIS OF THE COURT
A. Law on Rule 56 Summary Judgment
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "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 any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Law on Workers' Compensation
Whether or not the plaintiff is permitted to proceed with a tort suit against the Times Picayune is governed by the Louisiana Workers' Compensation Act. Because workers' compensation is inherently ". . . a remedy between employer and an employee, it follows that there can be no compensation coverage absent an employer-employee relationship." Hillman v. Comm-Care, Inc., 805 So.2d 1157 (La. 2002). The plaintiff argues, and the defendant concedes, that Ms. Seal was not an employer of the Times Picayune at the time of the accident, but rather an independent contractor. (Def.'s Mem. Supp. Summ. J. at 8.) However, defendants rely on La.Rev.Stat. 23:1021 (6), for proposition that the Act recognizes that an independent contractor, a status which may exist for tort liability purposes, may qualify for workers' compensation. The statute provides in pertinent part:
"Independent contractor" means any person who renders service, other than manual labor, for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.
La.Rev.Stat. 23:1021(6). (Emphasis added.)
Under these terms, even if the plaintiff were considered an independent contractor, she may still be entitled to workers' compensation benefits if a substantial part of her time is spent in manual labor in carrying out the terms of the contract. Therefore, the issue becomes whether or not a substantial part of plaintiff's work constitutes manual labor.
To support its contention that the a substantial part of the plaintiff's work constitutes manual labor, the defendant cites Timberlake v. Avis Rent A Car System, 361 So.2d 934, 935 (La.App. 4 Cir. 1978), in which the Court held that driving an automobile is manual labor within the definition of R.S. 23:1021(6). Because the plaintiff spends a substantial amount of her work time driving her truck, the defendant argues that it is only logical to find that a substantial amount of her work is manual labor, making worker's compensation her exclusive remedy. In addition, defendant draws attention to the fact that the plaintiff was lifting and loading bundles of newspaper off a conveyor belt, i.e. engaged in manual labor, when she was injured.
The plaintiff, relying on Whitlow v. The Shreveport Times, 843 So.2d 665 (La.App. 3 Cir. 4/23/03) and Guillory v. Overland Express Co., 01-419 (La.App. 3. Cir. 10/3/01), 796 So.2d 887, contends that the act of driving is not considered manual labor as defined by Louisiana law. Therefore, plaintiff contends that while she did lift bundles of newspapers into her vehicle, undo the bundles, unload them and place them in vending machines and unload the unsold papers, the majority of her time was spent driving her truck, maintaining up-to-date customer lists, maintaining list of returns on unsold papers, seeking out and obtaining new subscribers, turning in checks and money orders to the Times Picayune for papers that were sold, and collecting money from her customers, activities which are not considered manual labor.
This Court finds that whether an individual's job involves manual labor is to be considered from the facts and circumstances of each case. Mullen v. R.A.M. Enterprises, 844 So.2d 376, 379 (La.App. 1. Cir. 3/28/03). Therefore, because there is a dispute as to the amount of time the plaintiff spent doing certain job related activities, this Court finds genuine issues of material fact exist. Therefore, summary judgment is not appropriate
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of the Defendant, The Times-Picayune Publishing Corp., be and the same is hereby DENIED.