Plaintiff, a Gulf Engineering Company employee, appeals from the dismissal of his damage suit against Louisiana Power and Light Company, Inc. and General Electric Company, Inc.
Issues raised by plaintiff in this appeal are (1) whether plaintiff's remedy for injuries sustained is exclusively in workmen's compensation (thereby exonerating the defendants, as statutory employers, from tort liability)
On May 26, 1974 plaintiff, a millwright foreman
To determine the ultimate question whether the defendants in this case are statutory employers, it is necessary that we ascertain whether plaintiff, at the time of the injury, was engaged in the "trade, business or occupation" of these defendants. See Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978). This determination depends upon the facts and circumstances of each case. Sisk v. Insurance Company of North America, 356 So.2d 1109 (La.App. 2nd Cir. 1978); Foster v. Western Electric Co., 258 So.2d 153 (La.App. 2nd Cir. 1972). Our courts also have recognized that maintenance and repair work comes within the scope of one's trade, business or occupation. Barnes v. Sun Oil Co., supra; Gray v. Louisiana Power and Light Company, 247 So.2d 137 (La.App. 4th Cir. 1971), writ refused, 259 La. 59, 249 So.2d 202; Duplechin v. Pittsburg Plate Glass Company, 265 So.2d 787 (La.App. 3rd Cir. 1972); Sisk v. Insurance Company of North America, supra.
Karl C. P. Muller, L.P. & L.'s employee in charge of the power production department, testified L.P. & L. was in the business of the production of electricity, and that from time to time emergency repairs and maintenance work was required. Fred McBeth, also an employee of L.P. & L., stated that at the time of the injury a general overhaul and maintenance of the turbine was being carried out. Jim Crumbley, a field engineer for General Electric Company, who was working for G.E. in connection with the L.P. & L. contract at the Sterlington plant, stated that plaintiff was working on a maintenance job overhauling the turbine.
Warren Redler did not testify that the work in which he was engaged was maintenance work. However, he specifically mentioned that no one supervised his work; that he was in charge of the Gulf Engineering Company employees; that blueprints of the turbine were supplied by General Electric Company; that if he had any problems
On the other hand, Redler also testified that when he was injured he reported the injury to Jim Crumbley and was told by Crumbley to return to work. He stated that he tried but was unable to continue with his work. Plaintiff testified also he was referred by an L.P. & L. employee to a doctor in Monroe, Louisiana.
Crumbley testified further that he and an L.P. & L. representative checked periodically to see if the work was being done properly, and also periodically checked the timesheets of the Gulf Engineering Company employees.
Applying the well-established jurisprudence to the facts of our case, we conclude the maintenance overhauling of the L.P. & L. turbine, in which plaintiff was engaged at the time of the injury, was maintenance and repair work and, as such, was part of both L.P. & L.'s and G.E.'s trade, business or occupation. We reach this conclusion irrespective of Redler's testimony that his day-to-day work was not subject to the control of L.P. & L. and G.E.
Having so concluded, we hold that Louisiana Power and Light and General Electric were statutory employers of Redler and as such exonerated from tort liability. Plaintiff's remedy against these statutory employers is in workmen's compensation.
Alternatively, however, plaintiff argues the contract between L.P. & L. and G.E. was a contract for the benefit of a third party because it contained provisions that G.E. shall remove from the work any "undesirable" persons, and that the "use of explosives in a manner which might disturb or endanger the stability, the safety or quality of the work will not be allowed." Plaintiff claims G.E. breached this contract when its employees set off the explosive device. Accordingly, Redler contends, he is entitled as a third party beneficiary to recover damages for "default of contract."
Because we have concluded that plaintiff's remedy is exclusively in workmen's compensation, it necessarily follows that neither L.P. & L. nor G.E. are responsible for damages for injuries received by a statutory employee, regardless whether the employee claims the injury resulted from a tort or a breach of contract. If we were to conclude otherwise, a plaintiff might assert a claim against any employer, statutory or otherwise (predicated on the employer's implied agreement to provide a safe place to work), and thereby claim recovery, based not upon tort but on breach of contract. This illogical result would in effect write out of our statutory law LSA-R.S. 23:1061 and 23:1032.
Accordingly, we hold plaintiff's exclusive remedy for damages resulting from the accident is under the Workmen's Compensation Act. The judgment is affirmed.