Plaintiff, Willie W. Johnson, instituted this action against defendant, James A. Alexander, a backhoe operator, for damages sustained when a steel pipe being lifted by Alexander fell and struck plaintiff's forefoot causing extensive injuries. Subsequent to the filing of plaintiff's petition, United States Fidelity and Guaranty Company (hereafter USF&G), workmen's compensation insurer of plaintiff's employer, Vincent Construction Company, Inc., intervened praying for reimbursement for medical expenses and workmen's compensation benefits paid to Johnson as a result of his work-related injuries. Plaintiff filed several amending and supplemental petitions additionally naming Dupont and Alexander Equipment Corporation, the regular employer of Alexander, and its liability insurer, Western World Insurance Company, as defendants. Prior to trial, the parties stipulated that intervenor, USF&G, had paid workmen's compensation benefits to plaintiff in the sum of $7,540.00 as well as medical expenses of $1,495.37.
The trial court held in favor of plaintiff granting judgment against all defendants, in solido, in the sum of $102,479.06 with interest until paid. Additionally, the trial court ordered that intervenor, USF&G be paid for its expenditures with preference in accordance with LSA-R.S. 23:1103.
On February 22, 1978, plaintiff, Willie W. Johnson, was employed as a pipefitter by Vincent Construction Company, Inc. (hereafter Vincent) and was engaged in laying firelines at the Continental VCM plant in Westlake, Calcasieu Parish, Louisiana. At the time of the accident, Vincent's pipefitting crew, of which plaintiff was a member, was preparing a length of steel pipe for installation. The pipe was approximately twelve inches in diameter, twenty feet in length, and weighed between 1200 and 2000 pounds. Immediately prior to the accident, the pipe was situated on pipe jacks, which elevated the pipe approximately three feet above the ground, with a portion of the pipe extending underneath a welding shed owned by Vincent. Before the pipe could be installed, it was necessary to affix a valve upon the flange of the pipe which necessitated that the pipe be moved from underneath the shed. Plaintiff's supervisors, also Vincent employees, instructed him and a co-worker to use a 550 Ford Tractor (commonly referred to as a backhoe) to raise the pipe off of the pipe jacks and place it on the ground.
Prior to February 22, 1978, Vincent contracted with Dupont and Alexander Equipment Corporation (hereafter Dupont) for the rental of a backhoe and the services of an operator to assist in laying the firelines at the VCM plant. The backhoe furnished by Dupont was operated by defendant, James Alexander.
The following issues are presented on appeal:
(1) Was Alexander negligent in the operation of the backhoe and if so, was his negligence the cause in fact of plaintiff's injuries?
(2) Was the defendant, James Alexander, a borrowed employee or statutory employee of Vincent Construction Company, Inc. and if so, does his status as such affect plaintiff's right of recovery in tort?
(3) Was plaintiff contributorily negligent so as to bar his recovery?
(4) Did plaintiff knowingly assume the risk of harm presented by moving the pipe with the backhoe?
(5) Is the award of damages by the trial court to the plaintiff excessive?
WAS ALEXANDER NEGLIGENT IN THE OPERATION OF THE BACKHOE, AND, IF SO, WAS HIS NEGLIGENCE A CAUSE IN FACT OF PLAINTIFF'S INJURIES?
The record reflects that plaintiff and a co-worker wrapped the choker around the pipe to be lifted and placed the eye of the choker on one or two of the teeth of the backhoe bucket. Evidence adduced at trial indicates that when the bucket of the backhoe is pulled up tight against the forward boom of the machine, it results in the teeth of the bucket being pointed slightly upward. Apparently, this was the position of the teeth at the time the eye of the choker was placed upon the bucket prior to the accident. As the lifting began, the pipe's weight stretched out the choker and as the boom of the backhoe went up, it resulted in a changing of the plane of the backhoe teeth from a slightly upward position to a level position, and, depending upon how high the bucket is raised, eventually to a downward or negative position.
Testimony at trial indicates that there was only one choker at the jobsite available for use in lifting the pipe. The eye of the particular choker utilized was too thick to fit snugly and securely behind the shoulder of the backhoe teeth. Thus, obviously, special caution was required in lifting the pipe.
Fred Liebkemann, an expert in the field of mechanical engineering, testified that he examined a backhoe identical to the one in use at the time of plaintiff's accident. In the course of his examination, Mr. Liebkemann took various measurements and considered numerous variables present at the time of the accident, such as, the dimensions of the choker used, the extension of the boom of the backhoe, and the effect of the extension of the outriggers of the machine. Mr. Liebkemann testified that, by his calculations, with the outriggers of the machine fully extended and thus, the rear wheels raised six inches off the ground, and with the eye of the choker attached to a tooth of the backhoe bucket, the lifting of the pipe would be relatively safe as long as the teeth of the bucket were less than six feet from the ground. Liebkemann indicated that at a height of less than six feet, the teeth remained in an upward position thereby preventing the eye of the choker from slipping off. He further stated that at six feet above the ground, the teeth would be parallel to the ground, thus, presenting a more dangerous situation. Finally, Liebkemann testified that at a height of greater than six feet, the teeth of the backhoe would be in a negative position and the weighted eye would surely slip off.
The trial judge, in his written reasons for judgment, notes that there exists conflicting testimony in the record concerning how high the pipe was raised by Alexander. However, the trial judge concluded that the most reliable testimony was that of Alexander himself. Alexander testified that the teeth of the bucket were raised at least six feet and more likely seven feet above the ground at the time the pipe fell and injured the plaintiff. The trial court concluded that in light of the expert testimony received at trial, the teeth of the backhoe were, at the very least, at a precariously level position and most likely at a dangerously negative position at the time of the accident. Thus, the trial court concluded that Alexander was negligent in the operation of the backhoe in that he raised the bucket to such a height that the choker slipped off of the teeth of the backhoe and the pipe struck the plaintiff.
It is well settled that a reviewing court must give great weight to the factual conclusions of the trier of fact, and where there is a conflict in the testimony, reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975), writ denied, 310 So.2d 641 (La.1975). We find no manifest error on the part of the trial court in his conclusion that defendant Alexander was negligent.
WAS ALEXANDER A BORROWED AND/OR STATUTORY EMPLOYEE OF VINCENT CONSTRUCTION COMPANY AT THE TIME OF PLAINTIFF'S ACCIDENT?
Defendant Alexander contends that he was a borrowed or statutory employee of Vincent at the time of the subject accident. In such regard, Alexander argues that since he was a borrowed or statutory employee of Vincent and thus, a co-employee of the plaintiff, the plaintiff may not maintain the instant action against him since such suits are prohibited by the Louisiana Workmen's Compensation Act, specifically LSA-R.S. 23:1032.
The issue of whether or not an individual is a "borrowed employee" is an issue of fact. Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (La.App. 3rd Cir. 1977); LeBlanc v. Roy Young, Inc., 308 So.2d 443 (La.App. 3rd Cir. 1975), writ denied, 313 So.2d 240 (La.1975); Nichols Construction Corporation v. Spell, 315 So.2d 801 (La.App. 1st Cir. 1975). The most commonly employed test utilized by the courts to determine if one is a "borrowed servant" is the "right of control" test. Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (La.1951), on remand, 56 So.2d 292 (La.App. 1st Cir. 1952); McCutchen v. Fruge, 132 So.2d 917 (La.App. 3rd Cir. 1961); Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3rd Cir. 1974), writ denied, 295 So.2d 817 (La.1974); Berry Brothers General Contractors, Inc. v. Air Marine, Inc., 328 So.2d 771 (La.App. 1st Cir. 1976); Highlands Insurance Co. v. L. J. Denny and Son, 328 So.2d 779 (La.App. 3rd Cir. 1976), writ refused 333 So.2d 237 (La.1976); Dupre v. Sterling Plate Glass & Paint Company, Inc., 344 So.2d 1060 (La.App. 1st Cir. 1977), writ denied 347 So.2d 246 (La.1977).
In Dupre v. Sterling Plate Glass & Paint Company, Inc., supra, our brethren of the First Circuit stated:
In the instant action, it is not disputed that Alexander was regularly employed by Dupont and was paid for his services as a backhoe operator by that company. Vincent was charged an hourly rate for the use of the backhoe and the services of an operator. Dupont submitted invoices reflecting the number of hours of service performed by Alexander and payment for such services was made directly to that corporation in accordance with such invoices. Alexander was not paid by Vincent. Additionally, we note that the 550 Ford tractor employed by Alexander in the performance of his duties was owned and furnished by Dupont.
Regarding the degree of control exercised by the supervisory personnel of Vincent over Alexander's work, we observe that although Vincent's foreman directed Alexander as to what tasks needed to be accomplished, they did not instruct him as to how he was to accomplish and complete such jobs. The method and manner employed by Alexander to complete his assigned jobs were left strictly up to him. In addition, although Vincent had the authority to terminate the contract between it and Dupont if the services of the operator selected by Dupont were unsatisfactory, Vincent did
The trial judge concluded that Alexander was not the borrowed employee of Vincent. We find no clear error in this determination. As we stated in Universal Engineers and Builders, Inc. v. Lafayette Steel Erector Corporation, 235 So.2d 612 (La.App. 3rd Cir. 1970):
Dupont has not successfully carried its burden of proof as set forth above. From our careful reading of the record, we conclude that Alexander was under the control of Dupont and was performing the work of the aforesaid corporation at the time of plaintiff's injury.
Alternatively, defendant contends that Alexander was a statutory employee of Vincent's Construction Co., Inc. and thus, a co-employee of the plaintiff which under the provisions of LSA-R.S. 23:1032 and 1061 would prohibit plaintiff from suing Alexander.
There are four essential elements which must be present in order for LSA-R.S. 23:1061 to be applicable:
All of the essential requisites are present in the instant case. The record establishes a principal-contractor relationship between Vincent and Dupont whereby Dupont would furnish and maintain one 550 tractor with an operator at a rate of $24.00 per hour. The backhoe was to be utilized in the laying of firelines at the Continental VCM plant in Westlake. The laying of such firelines was part and parcel of the work undertaken at the VCM plant by Vincent. The record reflects, that Vincent, itself, owned and operated a number of backhoes,
Alexander avers that since he is a "co-employee" of the plaintiff by virtue of his statutory employer-employee relationship with plaintiff's employer, the instant suit is barred by virtue of LSA-R.S. 23:1032 which prohibits suits in tort as between co-employees.
Although LSA-R.S. 23:1032 and 1061 do not clearly provide that a statutory employee becomes a co-employee of all of the regular employees of the statutory employer, it appears to us that this status is necessarily intended by those cited sections of Louisiana's Workmen's Compensation Act.
LSA-R.S. 23:1032 explicitly provides that the rights and remedies granted via the Louisiana Workmen's Compensation Act to an injured employee are exclusive of all other rights and remedies (e.g. suits in tort) "... against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal...". However, the aforesaid statute does not provide for the particular factual situation presently before this court. In the instant case, a regular employee of defendant Alexander's principal (also, plaintiff's employer) is suing his employer's statutory employee and such statutory employee's general employer and its liability insurer. The language of LSA-R.S. 23:1032 provides for the more common situation where the statutory employee is injured on the job while in the employ of his special employer by providing that the injured statutory employee can sue neither his statutory employer nor the regular employees of his statutory employer in tort. For example, in the instant case, Vincent is the regular employer of Johnson and the principal of Alexander. Clearly, if Alexander had been hurt he could not bring a tort suit against Johnson because under Section 1032 the rights and remedies granted under the Workmen's Compensation Act are exclusive of all other rights and remedies against an "employee of his employer or principal." However, the aforesaid statute is silent in regard to the right of a regular employee of a principal to sue the principal's statutory employees in tort. Although as far as we have been able to determine, this particular issue is res novo, in our view it would be incongruous to hold that the provisions of LSA-R.S. 23:1032 would bar suits in tort by a statutory employee against the regular employees of the principal but would not bar suits in tort by the regular employees of the principal against statutory employees of the principal. Thus, we conclude that when an employee acquires the status of a statutory employee by application of the provisions of LSA-R.S. 23:1061, he becomes a co-employee vis-a-vis the regular employees of the principal within the intendment of Section 1032. Therefore, we determine that since Alexander was a statutory employee of plaintiff's employer, Vincent, he, thus, became a co-employee of Johnson. Since, the explicit language of LSA-R.S. 23:1032 prohibits suits in tort as between co-employees, we conclude that the plaintiff may not maintain the instant suit against Alexander.
Having concluded that plaintiff may not maintain this suit against his co-employee, Alexander, the issue now becomes whether or not Dupont and its liability insurer are responsible by virtue of the doctrine of respondeat superior for the torts of Dupont's regular employee even though such employee was at the time of the tort a statutory employee of plaintiff's employer and a co-employee of the injured plaintiff.
The court further stated:
As noted, the Louisiana Supreme Court denied writs in the Franklin case and, although a writ denial is not controlling, it is persuasive in that the principal issue on appeal in Franklin concerned the vicarious liability of the tortfeasor's employer.
We agree with the holding in the Franklin case considering same to be logical and reasonable and one which reaches a just result in keeping with the legislative purpose and intent of the Workmen's Compensation Act. Accordingly, we conclude that since Alexander, a co-employee of Johnson is not primarily liable in tort to Johnson by reason of the co-employee exemption set forth in LSA-R.S. 23:1032, Alexander's general employer and its insurer cannot be held secondarily liable.
We recognize that the conclusion which we reach in this case is seemingly in conflict with the La. Supreme Court decision in LeJeune v. Allstate Insurance Company, 365 So.2d 471 (La.1978).
In LeJeune, the court expressly held that both a general and a special employer may be held liable to third persons for the employee's torts. Justice Tate in LeJeune noted that the determination that an employee tortfeasor is a borrowed employee "... should not relieve the general employer of his liability for his employee's negligent acts done in the pursuance of duties designated for him by his employer, in whose pay he continued, and who had the sole right to discharge him."
We conclude that it is consistent to apply the LeJeune rationale to cases involving a statutory employer-employee relationship. That is to say, as to third persons injured by an employee's torts both the statutory employer and the general employer
Although in LeJeune plaintiffs' decedent, under similar factual circumstances, was allowed recovery as a "third person," the court reached this result without considering Ville Platte's immunity from suit under R.S. 23:1032, by reason of the co-employee relationship which existed between the decedent in LeJeune and the tortfeasor. This issue was not raised nor considered.
Having concluded that the trial court judgment on the issue of liability must be reversed and plaintiff's suit as against all defendants dismissed, we need not consider those issues pertaining to the contributory negligence and/or assumption of the risk of plaintiff or the issue of quantum of damages.
For the above and foregoing reasons, the judgment of the trial court is reversed and it is now ordered, adjudged, and decreed that plaintiff's suit against defendants, James A. Alexander, Dupont and Alexander Equipment Corporation and its liability insurer, Western World Insurance, be dismissed with prejudice. It is further ordered that the intervention of United States Fidelity and Guaranty Company be dismissed with prejudice.
It is further ordered that all costs of these proceedings both at the trial level and on appeal be born one-half (½) by United States Fidelity and Guaranty Company and one-half (½) by plaintiff, Willie W. Johnson.
REVERSED AND RENDERED.