SHORTESS, Judge.
Louis Rogers (plaintiff) brought suit against Leo G. D'Aubin, Jack McDonald and Mrs. Rebecca G. McDonald (husband and wife), alleging that he was injured on or about July 6, 1981, while working for the defendants. He sought worker's compensation benefits for total and permanent disability. D'Aubin and the McDonalds filed separate motions for summary judgment, which were granted by the trial court, and plaintiff's suit was dismissed. He has perfected this appeal. In ruling upon said motions, the trial court said:
Numerous exhibits, and statements were attached to the defendants' affidavits, as well as plaintiff's countervailing affidavits. From the affidavits, we have been able to ascertain the following facts: On May 11, 1978, Robert Jack McDonald, then married to Nancy Quillen McDonald, sold his residence located at 6255 Jefferson Highway, Baton Rouge, to Leo Grant D'Aubin and his wife, Isabelle. Notwithstanding this sale, the McDonalds continued to reside at the Jefferson Highway address. On March 3, 1980, Robert J. McDonald perfected a handwritten agreement with Leo D'Aubin which can be characterized as an option to repurchase the property subject to several conditions. On January 1, 1981, Robert J. McDonald married Rebecca Goux McDonald. Prior to this marriage, on December 19, 1980, they entered into a premarital agreement and remained separate in property. Subsequently, on May 25, 1981, the residence located on Jefferson Highway was damaged. D'Aubin apparently received the proceeds from the damage claim but released same to Jack McDonald after he agreed to spend the entire sum on repairs. Whereupon, the McDonalds entered into an agreement with plaintiff to work
Defendants' affidavits and exhibits are intended to show that plaintiff was an independent contractor whose duties were such that he did not spend a substantial part of his work time in the performance of manual labor. Plaintiff's countervailing affidavits put at issue whether or not a substantial portion of his time was devoted to physical labor on this job. Plaintiff's affidavit sets forth numerous examples of manual labor performed by him on this job and creates a material issue of fact.
The Supreme Court in Lushute v. Diesi, 354 So.2d 179 (La.1977), had occasion to discuss an "independent contractor" as defined in the worker's compensation law in La.R.S. 23:1021(6). In that case, the court found that the plaintiff was an independent contractor. It then considered whether he was an independent contractor entitled to receive worker's compensation benefits under the provisions of La.R.S. 23:1021(6). It concluded that an independent contractor is covered only when a substantial portion of his work time is spent in manual labor in carrying out the terms of his contract with the principal, and the work performed by him is a part of the principal's trade, business or occupation.
In an attempt to rebut the McDonald allegations, plaintiff's affidavit attested that Rebecca McDonald assisted her former husband, Jerry Goux, a general contractor, in his business for many years, and at the time the renovation project in question arose, she obtained the necessary permits from the City-Parish government and indicated thereon that she was the owner and contractor. As relates to Jack McDonald, plaintiff attested that the Louisiana Real Estate Commission had no record of McDonald being licensed as a realtor, broker or salesman. With regard to D'Aubin, plaintiff attested that:
And further,
In considering a motion for summary judgment, we are quite mindful of the firmly established principle of law that every doubt must be resolved against the mover. The record in this case establishes that plaintiff, for the sum of $300.00 per week, performed work on the renovation and repairs of the residence occupied by the McDonalds but owned by D'Aubin. The record also indicates that D'Aubin is a roofing contractor and has been such for many years, and that construction work is part of his trade, business or occupation. The facts which are in dispute here include: the exact nature of the plaintiff's employment status; the nature of plaintiff's work, i.e., whether manual or supervisory or a combination; whether, if it included manual labor, it was a substantial portion of his work; the nature of Jack McDonald's trade, business, or occupation; the nature of Rebecca McDonald's trade, business or occupation.
We are faced here with a record which places issues of material fact squarely before the court as to whether plaintiff was an independent contractor; whether a substantial part of his work time was spent at manual labor, and whether said work was part of his principals' trade, business or occupation.
We find that the trial court erred, and that these motions for summary judgment should have been denied. We do so now, and we reverse and remand this case to the trial court for further proceedings consistent with this opinion. Costs of this appeal are taxed to D'Aubin and the McDonalds.
REVERSED AND REMANDED.
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