KELLER v. EVANS COOPERAGE, INC.

KLIEBERT, Chief Judge.

This appeal concerns the constitutionality of LSA-R.S. 23:1032, which provides immunity from tort suits to statutory employers. Plaintiff, Ricky Keller (hereafter "Keller") and Fidelity & Casualty Company of New York (hereafter "Fidelity") insurer of Keller's employer, Building Management Personnel (hereafter "BMP") appeal from a summary judgment granted to Evans Cooperage, Inc. (hereafter "Evans"). The judgment found Evans to be Keller's statutory employer and rejected plaintiff's constitutional challenge of LSA-R.S. 23:1032, which grants ordinary tort immunity to statutory employers. For the following reasons, we affirm the judgment of the trial court.

Keller was injured in the course and scope of his employment at Evans' Harvey plant. Though working at Evans' plant, Keller was an employee of BMP, the temporary employment agency who furnished supplemental workers to Evans. On July 31, 1992, Keller was sprayed with caustic soda from a broken overhead pipe, burning him over 95% of his body and causing the loss of sight in one eye. Keller sued Evans in ordinary tort alleging that the immunity provided by LSA-R.S. 23:1032 is unconstitutional. (Plaintiff Barbara Keller, Ricky's mother, claims loss of consortium). In a first supplemental and amended petition, Keller amended his petition to add a cause of action in intentional tort against Evans. Evans answered, alleging the Kellers' only remedy against it was for worker's compensation. Fidelity, the worker's compensation carrier of BMP, intervened in the suit, seeking reimbursement for compensation paid to Keller.

Evans moved for summary judgment, alleging that it was Keller's statutory employer and thus, under the provisions of LSA-R.S. 23:1032, immune to suit in ordinary tort, and specifically asked the court to find this immunity constitutional. Fidelity amended its petition to allege that Evans was the borrowing employer of Keller and was thus responsible for one-half of all compensation benefits already paid, and payable in the future by Fidelity. The trial court granted summary judgment in favor of Evans on both issues.

Keller appealed only the finding that LSA-R.S. 23:1032 is constitutional. (He does not appeal the factual determination that Evans was his statutory employer.) Fidelity also appealed, alleging summary judgment was improper because of unresolved factual issues, specifically whether Evans Cooperage's actions constituted an intentional tort against plaintiff Keller.

SUMMARY JUDGMENT

The law on summary judgment has been exhaustively stated by this Court and will not be repeated here. Toups v. Hawkins, 518 So.2d 1077 (La.App. 5 Cir.1987). Specifically, summary judgment will be granted in favor of mover when there are no contested issues of material fact, and mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

In the instant case, only one motion for summary judgment was filed, that of Evans. This motion addressed two specific issues only: (1) whether Evans was Keller's statutory employer, and (2) whether the ordinary tort immunity provided to statutory employers by LSA-R.S. 23:1032 is constitutional. Contrary to Fidelity's appellate brief, the issue of Keller's suit in intentional tort against Evans was not before the court by way of this motion for summary judgment and was properly not addressed in any way by the trial court. As pointed out in Evans' appellate brief, this grant of summary judgment does not in any way dismiss Keller's suit in intentional tort against Evans, as the immunity granted by LSA-R.S. 23:1032 sounds in ordinary tort only.

Fidelity also points out that the trial court's judgment did not address its contribution claims against Evans. However, as with the intentional tort claim, this issue was not a subject of the motion for summary judgment and thus was not before the trial court at this juncture.

THE CONSTITUTIONALITY OF LSA-R.S. 23:1032

Keller challenges the constitutionality of LSA-R.S. 23:10321 on two grounds. First, he alleges that it denies him equal protection of the laws because employees at the work site are not treated equally, i.e., regular employees of a principal may sue the subcontractor and its employees in tort, whereas, the employees of the subcontractor may not sue the principal (statutory employer) or its employees in tort. Second, plaintiff contends that LSA-R.S. 23:1032 and 23:10612 deny him due process of the law by restricting his remedy against the statutory employer.

The statutory employer immunity has withstood previous constitutional challenges. In Williams v. Gervais F. Favrot Co., 499 So.2d 623 (La.App. 4 Cir.1986), writ denied, 503 So.2d 19 (La.1987), plaintiff was the widow of a construction worker killed in the course of his employment with H & W Erectors (H & W). H & W was a subcontractor hired by Favrot, the general contractor, to perform the steel reinforcement work required in the construction of an office building. The widow sued Favrot. The suit was dismissed on the grounds that Favrot was the decedent's statutory employer and the widow appealed.

On appeal, the Fourth Circuit, at page 627 said:

The Fourth Circuit had previously upheld the constitutionality of the statutory employer defense although the case was reversed on other grounds. Thompson v. South Central Bell Telephone Company, 402 So.2d 799 (La. App. 4 Cir.1981), reversed on other grounds, 411 So.2d 26 (La.1982). An injured employee filed suit against the telephone company for injuries sustained in a job-related accident while working on a project that the injured employee's employer was performing for the telephone company. The court in that case rejected the plaintiff's argument that the statutory employer defense was unconstitutional. Thompson, supra, at 805. The Court of Appeal found that the telephone company was a statutory employer of the injured employee. On appeal to the Supreme Court, the Court reversed, finding that a genuine issue of material fact remained as to whether the telephone company was the statutory employer. 411 So.2d at 27.

Lastly, as noted above, in Guinn v. Progress Drilling, Inc., 398 So.2d 128 (La.App. 3 Cir.1981), reversed on other grounds, 401 So.2d 978 (La.1981), plaintiff's argument was exactly the same as Keller's in this case, that since an injured employee does not actually receive compensation benefits from the principal employer, the act could not constitutionally deprive him of his tort remedy. The trial court, relying on Bazley v. Tortorich, supra, specifically rejected this argument.3

Keller argues that he is not treated equally with other employees at the work site. Specifically, he argues that employees of the principal may sue the contractor and its employees in tort, whereas, he may not sue the principal in tort. However, we see that these parties do not have equal relationships. The Supreme Court specifically addressed these differences in Johnson v. Alexander, 419 So.2d 451 (La.1982). There, the court underscored the importance in the worker's compensation scheme of the employer-employee relationship.

Keller maintains that affording a principal employer tort immunity who does not actually pay workers' compensation benefits does not rationally further the otherwise legitimate state interest of charging the cost of employee injuries to the industry as a whole, and that a principal so situated does not participate in the compromise, or trade-off, envisioned by the legislature. However, plaintiff is wrong, both in the general sense and specifically with regard to the statutory employer in the matter.

We note that LSA-R.S. 23:1032 gives the injured employee rights to seek compensation benefits from a principal. LSA-R.S. 23:1061(B) gives the principal the right to seek indemnification from the employee's immediate employer. Reading the two statutes together, the principal is primarily liable for compensation but shall be entitled to indemnification from the immediate employer. If BMP were for some reason unable to pay worker's compensation to Keller, Evans would be obligated to provide the benefits as a matter of law pursuant to LSA-R.S. 23:1032 and LSA-R.S. 23:1061.

Keller also overlooks the contractual arrangements between the statutory employer and the immediate employee. By virtue of the terms of the contract, Evans is obligated to reimburse the employer for any and all workers' compensation premiums which it paid on behalf of Keller, as well as for wages paid to him, and administrative costs. Therefore, although the statutory employer's own compensation carrier has not paid Keller benefits, Evans has borne the costs of the compensation benefits paid to Keller by the employer BMP's carrier through its payment of the insurance premiums.

Additionally, Evans is an industrial employer in its own right. As a statutory employee, Keller, was a temporary employee who supplemented the regular Evans work force, and was in fact the only BMP employee on his crew and, as such, shares in the overall cost of employee injuries with respect to the industry as a whole. Given the foregoing costs and liabilities which Evans has, or any principal employer has, it cannot be said that the statutory employer is an isolated business entity that has insulated itself from liability for workers' compensation benefits to employees like Keller. Evans clearly participates in the compromise or trade off envisioned by the legislature which entitles it to ordinary tort immunity as a principal employer consistent with the constitutional principals announced by the Louisiana Supreme Court in Bazley v. Tortorich, supra.4

Last, Keller argues that he has been discriminated against due to "physical condition." However, as addressed above, Keller is treated identically to all other injured workers so situated, i.e., all workers of contractors who seek to sue their principals in ordinary tort. Employees of principals injured by tortious workers of contractors are not similarly situated in that the underlying employer-employee relationship does not exist between the principal's direct employee and the contractor.

Accordingly, we affirm the trial court's rejection of Keller's constitutional challenge to the tort immunity granted to statutory employers by LSA-R.S. 23:1032. Plaintiffs are to bear all costs of this appeal.

AFFIRMED.