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Grant v. Sneed

Court of Appeal of Louisiana, Second Circuit

November 19, 2014

AUSBORN CLEVE GRANT, husband of/and TINA MARIE GRANT, Plaintiffs-Appellants
v.
KELLY SNEED, BEN FREELON and WEYERHAEUSER COMPANY, Defendants-Appellees

Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana. Trial Court No. 41-058. Honorable Glenn Fallin, Judge.

LAW OFFICE OF BARRY LANDRY, By: Barry J. Landry, Counsel for Joint Appellants, Ausborn Cleve Grant and Tina Marie Grant.

COLVIN, SMITH & MCKAY, By: Cole B. Smith, Counsel for Joint Appellant/Intervenor, Louisiana Safety Association of Timbermen-Self Insurers Fund.

GOLD, WEEMS, BRUSER, SUES & RUNDELL, By: Lottie L. Bash, Leisa B. Lawson, Counsel for Appellees.

Before BROWN, LOLLEY and GARRETT, JJ.

OPINION

Page 62

[49,511 La.App. 2 Cir. 1] GARRETT, J.

The plaintiffs, Ausborn Cleve Grant and Tina Marie Grant, and the intervenor, Louisiana Safety Association of Timbermen-Self Insurers Fund (" Timbermen" ), appeal from the trial court's grant of summary judgment in favor of the defendants, Kelly Sneed, Ben Freelon, and Weyerhaeuser Company. The trial court found that the plaintiffs' tort claim was barred because Weyerhaeuser was the statutory employer of Grant, and their exclusive remedy was in workers' compensation. For the following reasons, we reverse and remand for further proceedings.

FACTS

Weyerhaeuser claimed to have a contract to sell two-by-four lumber to Lumbermen's

Page 63

Merchandising Corporation (" LMC" ), with delivery to be made to Orange County Building Material in Vidor, Texas. The purported contract specified that the lumber was to come from Weyerhaeuser's mill in Dodson, Louisiana. Weyerhaeuser also had a mill in Taylor, Louisiana, which did not have a planer to finish the boards. According to Weyerhaeuser, some of the lumber from the Taylor mill was transported to the Dodson mill for finishing before it was shipped to LMC.

On January 17, 2008, Weyerhaeuser entered into a Core Carrier Truckload Motor Carrier contract with Will Transport Company (" Will Transport" ) to haul lumber from Taylor to Dodson. The contract was signed by Karl Pentecost in his capacity as manager of Will Transport and specified that Will Transport was an independent contractor and the employees of Will Transport were not the employees of Weyerhaeuser.

[49,511 La.App. 2 Cir. 2] On January 3, 2005, Will Transport entered into an equipment lease agreement with Dan Varnado, who did business as V& M Trucking, whereby V& M was to lease a truck to Will Transport and was to provide a driver for the truck. The lease specified that Varnado was an independent contractor. Grant worked for V& M and was assigned to drive the truck leased to Will Transport.

On June 19, 2008, Grant drove V& M's truck to the Taylor mill to pick up a load of lumber to transport to Dodson. Kelly Sneed was the forklift operator employed by Weyerhaeuser who loaded loose bundles of lumber onto the truck. After the bundles were loaded, Grant was tying down the load when he alleges that a two-by-four fell, striking him on the left side of the head and shoulder. V& M had workers' compensation insurance with Timbermen. Grant made a workers' compensation claim against V& M, which was paid on its behalf by Timbermen.

On June 2, 2009, Grant and his wife filed suit for personal injury and damages against Weyerhaeuser and Sneed, as well as Ben Freelon, the plant manager at the Taylor mill. They claimed Grant was injured through the negligence of the defendants. His wife asserted a loss of consortium claim. Timbermen filed a petition of intervention, seeking to recover past and future workers' compensation benefits if the plaintiffs were successful in their damage claim against the defendants.

On October 18, 2013, the defendants filed a motion for summary judgment, claiming that Weyerhaeuser was the statutory employer of Grant and the plaintiffs' exclusive remedy was in workers' compensation, under [49,511 La.App. 2 Cir. 3] La. R.S. 23:1032(A) and 23:1061. The defendants asserted that the two-contract theory applied, whereby Weyerhaeuser's contract with LMC, its contract with Will Transport to fulfill the LMC contract, and Will Transport's contract with V& M extended immunity from tort to Weyerhaeuser as a principal, regardless of how far removed it was from the direct employer of the injured worker. The defendants also argued that Timbermen's intervention must fall.

The plaintiffs and Timbermen opposed the motion for summary judgment, claiming that Weyerhaeuser did not prove its status as the statutory employer of Grant. At the conclusion of the hearing, the trial court issued this ruling from the bench:

After reviewing the briefs and arguments of both -- all -- of the attorneys, I'm going to adopt the argument of the defendants in this case and grant that there is no material issue and no material fact. And I think he is a statutory employer. Therefore, the Motion for Summary Judgment is, therefore, granted.

Page 64

The claims of the plaintiffs and Timbermen against the defendants were dismissed with prejudice. The ...


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