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Louque v. Scott Equipment Co. LLC

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

AUDREY BLANK LOUQUE, ET AL
v.
SCOTT EQUIPMENT COMPANY, LLC, TRADE NAME SCOTT/TOYOTA LIFT OF LOUISIANA (SCOTT EQUIPMENT SALES COMPANY, LLC), ET AL

         ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 78, 8, DIVISION "C" HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, AUDREY BLANK LOUQUE Craig J. Robichaux

          COUNSEL FOR DEFENDANT/APPELLEE, MOTIVA ENTERPRISES, LLC Timothy P. Hurley Robert K. Denny

          Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson.

         AFFIRMED.

         SMC

         FHW

         RAC

          SUSAN M. CHEHARDY CHIEF JUDGE.

         On appeal, plaintiffs challenge the trial court's ruling granting defendant's motion for summary judgment. For the following reasons, we affirm.

         Facts and Procedural History

         On March 13, 2013, during the course and scope of his employment with River Parish Maintenance at Motiva Enterprises, LLC's manufacturing complex, Michael J. Louque, Sr. was killed when heavy equipment being loaded onto a flatbed truck by forklift rolled off of the truck onto him.[1] On March 3, 2014, Audrey Louque individually, and on behalf of their minor daughter, Tracey Louque, and Michael J. Louque, Jr. (hereinafter collectively "the Louques") filed suit seeking damages for the wrongful death of their husband and father. In their lawsuit, the Louques named as defendants: Daimler Trucks North America, LLC; United Rentals-North America Inc.; Penske Truck Leasing Co., L.P.; Toyota Motor Sales, USA; Scott Equipment Sales; H&E Equipment Sales, Inc.; and Motiva Enterprises, LLC.

         Several defendants, including Motiva Enterprises, LLC (hereinafter "Motiva") filed exceptions and several defendants answered, raising affirmative defenses. More specifically, Motiva filed an exception of no right of action, pursuant to La. C.C.P. art. 927. In its exception, Motiva asserted that Mr. Louque was its "statutory employee, " and, thus, Motiva was immune from liability under the Louisiana Workers' Compensation Act. The trial court sustained Motiva's exception and dismissed the case against Motiva. The Louques appealed that judgment.

         On appeal, this Court reversed that judgment and remanded for further proceedings. Louque v. Scott Equip. Co., LLC, 15-43 (La.App. 5 Cir. 4/29/15), 170 So.3d 335. Specifically, we found:

In this case, unlike other contracts of this ilk that have been reviewed by this Court, Motiva is not listed as an affiliate, subsidiary, or buyer but rather as a location for services. Our de novo review reveals that Motiva failed to establish itself as Mr. Louque's statutory employer and, thus, the trial judge erred in sustaining its exception of no right of action. Accordingly, we reverse that ruling and remand the matter for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against Motiva Enterprises, LLC. (Footnotes omitted).

Id. at 340.

         On June 29, 2015, Motiva answered the petition and asserted, among others, the statutory employer defense.[2] On November 24, 2015, Motiva filed a motion for summary judgment on the basis that it was immune from tort liability under La. R.S. 23:1061 et seq. because Mr. Louque was Motiva's statutory employee. In support of its motion, Motiva attached, among other things, an affidavit from its General Counsel Christopher Vice; a copy of RPM's incident investigation report; an OSHA investigation report; witness depositions; the Procurement Agreement No. NS-012808-CAP with Alterations; and Purchase Orders from Motiva to RPM.

         To their opposition to Motiva's motion for summary judgment, the Louques attached an affidavit from A.J. McPhate, Mechanical Engineer; and excerpts of witness depositions.

         On April 11, 2016, the trial judge granted Motiva's motion for summary judgment and dismissed the Louques' claims with prejudice. The Louques appeal that ruling.

         On appeal, the Louques raise five assignments of error: first, the trial court erred in considering incompetent summary judgment evidence; second, the trial court erred in relying on parole evidence to determine statutory employer status; third, the trial court erred in relitigating the statutory employment issue; fourth, the trial court erred in refusing to recognize that intentional torts are an exception to the exclusivity provision; and fifth, the ...


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