DOUCET v. W. H. C., INC.

SAVOY, Judge.

Joseph Norman Doucet, a roustabout in the employ of Ashy Construction Company, Inc., brought this action in tort against W. H. C., Inc., Donald "Don" Hebert, Tidewater Oil Company (hereinafter referred to as Tidewater), and four individual employees of Tidewater, to recover damages incurred when a gas line owned by Tidewater blew out with tremendous pressure resulting in Doucet's left arm being torn off below the elbow. At the time of the accident plaintiff was assisting with the repair of a salt water disposal pump located at a Tidewater well site referred to as Lacassine Well No. 2, situated in Cameron Parish, Louisiana.

The answers filed stated general denials of liability. Tidewater further averred that the repair of the pump was work which it had undertaken to execute and which was part of its trade, business or occupation; that the plaintiff was in the employ of Ashy Construction Company, employed in the execution of said work; that Tidewater or Ashy had in full force and effect at the time of the accident workmen's compensation insurance coverage covering the liability, if any, of Tidewater to plaintiff under the Louisiana Workmen's Compensation Act, and that plaintiff's sole and exclusive remedy, if any, against Tidewater was under the Louisiana Workmen's Compensation Act.

Tidewater filed a motion for summary judgment contending that under LSA-R.S. 23:1061, plaintiff's exclusive remedy, if any, against Tidewater was under the Louisiana Workmen's Compensation Act, and that plaintiff had no right to sue in tort. From an adverse judgment plaintiff prosecutes this appeal, contending that the trial court erred in granting the motion for summary judgment in view of the fact that Tidewater's employees did not perform the type of work done by the plaintiff at the time he was injured, and that since the defense provided by LSA-R.S. 23:1061 was an affirmative defense, the defendant bore the burden of proving same, which it failed to do in the instant case.

LSA-R.S. 23:1061 provides that:

As reiterated time and time again, the fundamental purpose of the statutory liability of a principal to the employees of his subcontractor, under LSA-R.S. 23:1061, is to prevent principals from contracting out their work in order to evade liability for workmen's compensation benefits to employees actually utilized in the principal's trade, business or occupation. See Meche v. Farmers Drier and Storage Company (La.App., 3 Cir., 1967), 193 So.2d 807, and authorities cited therein.

It cannot be realistically contended that the work of the plaintiff was not a part of the trade, business or occupation of Tidewater at the time of the accident. The pleadings and depositions presented with the motion for summary judgment reveal that Tidewater was engaged in the production aspects of the oil and gas industry and for production of oil and gas certain well equipment must be installed, inspected and maintained, which equipment is certainly essential. It is not disputed that the salt water pump on the well on which plaintiff was working was a part of the equipment, and that it was being repaired so it could continue to perform an essential part of the production process.

Appellant places great reliance on the fact that in the area where the accident occurred Tidewater had no roustabouts on its payroll to perform the type work plaintiff was performing when the accident occurred. He contends that this almost conclusively shows that the work he was performing was not an integral part of the defendant's trade, business or occupation. The depositions reveal that Tidewater did keep two roustabouts on its permanent payroll in Houma, Louisiana, but the keeping of a roustabout crew in the Southwest part of Louisiana was not economically feasible when comparing the expenses involved as to the usage of the crew.

For the foregoing reasons the judgment of the district court sustaining the motion for summary judgment is hereby affirmed, at appellant's costs.

Affirmed.