United States District Court, W.D. Louisiana, Alexandria Division
MAGISTRATE JUDGE PEREZ-MONTES
DRELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is the motion of defendant International Paper
Company ("International Paper"), for summary
judgment. Doc. 22. Plaintiffs filed a response to the motion
(Doc. 26), and International Paper filed a reply memorandum.
Doc. 27. The matter is ready for disposition. For the
following reasons, International Paper's Motion for
Summary Judgment will be GRANTED.
Background and Procedural History
and David Duwayne Long ("Plaintiffs") filed the
original action in this case on March 1, 2016, in the
10th Judicial District Court (Natchitoches Parish,
Louisiana). Defendants, International Paper and Brock
Services, LLC ("Brock Services"), removed alleging
complete diversity between the parties pursuant to 28 U.S.C.
§1332. Doc. 1. International Paper is incorporated in
New York with its principal place of business in Tennessee
and Brock Services' sole member is Brock Holdings III,
Inc., a Delaware corporation with a principal place of
business in Texas. Doc. 1, p. 2. International Paper also
averred Plaintiffs' claim for damages to be in excess of
$75, 000, fulfilling the amount in controversy requirement
for diversity jurisdiction.
suit arises out of an accident resulting in David Long's
("Long") death that occurred at International
Paper's Red River Mill (the "Mill") in Campti,
Louisiana on March 2, 2015. Doc. 22-2, p. 1. At the time of
the accident, International Paper had contracted with Brock
Services to build scaffolding at the Mill over the Number 1
Paper Machine (the "Machine") to access a hydraulic
leak near the lubrication tubing for repair. Id. at
2. Long and two co-workers, all employees of Brock, were
actively constructing scaffolding on and over the seventh
drive shaft and motor of the Machine, while the motor was in
operation. Doc. 26, p. 5. Mr. Long's safety lanyard
became entangled in the Machine's drive shaft and he was
pulled in, leading to his death. Id.
allege there was no guard or properly installed cover over
the Machine's rotating motor. They also assert
International Paper knew the area in which Long was working
was unreasonably dangerous and did not attempt to warn him.
Doc. 1-3, p. 2. Additionally, Plaintiffs claim that
International Paper and Brock did not provide proper safety
equipment; the safety equipment that was provided was also
unreasonably dangerous. Doc. 1-3, p. 4. Finally, Plaintiffs
assert that International Paper and Brock Services should be
estopped from pleading statutory employer protection under
the Louisiana's Workers' Compensation Law because,
they say, Defendants acted intentionally in directing the
scaffolding to be built near moving machinery and should have
known that serious injury and/or death were substantially
certain to follow from this conduct. Doc. 1-3, p. 4.
Paper has filed the instant motion for summary judgment
positing that at the time of his death, Long was acting in
the course and scope of his employment; therefore, they
conclude, Plaintiffs' claims against International Paper
are barred by the Louisiana Workers' Compensation Act
because Plaintiffs have not stated a claim for an intentional
tort against International Paper. Doc. 22, p. 2. Plaintiffs
opposed the motion, arguing that International Paper knew
that death and/or serious bodily injury was substantially
certain to follow from Long's building of the scaffold,
which is tantamount to an "intentional act"
exception under the Louisiana Workers' Compensation Act.
Doc. 26, p. 7. International Paper replied, stating the
intentional act exception does not apply because it was the
statutory employer under the Louisiana Workers'
Compensation Act. Doc. 27, p. 1.
Law and Analysis
A. Summary Judgment Standard
court "shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A motion for summary judgment must be
supported by "particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations,
admissions, interrogatory answers or other materials."
Fed.R.Civ.P. 56(c)(1)(A). A dispute of material fact is
genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We
consider "all evidence in the light most favorable to
the party resisting the motion." Seacor Holdings,
Inc. v. Commonwealth Ins. Co., 635 F.3d 675, 680 (5th
Cir. 2011) (internal quotations omitted). In this analysis,
we review facts and draw all inferences most favorable to the
nonmovant, "[h]owever, mere conclusory allegations are
not competent summary judgment evidence, and such allegations
are insufficient, therefore, to defeat a motion for summary
judgment." Eason v. Thaler, 73 F.3d 1322, 1325
(5th Cir. 1996). It is important to note that the standard
for a summary judgment is two-fold: (1) there is no genuine
dispute as to any material fact, and (2) the movant
is entitled to judgment as a matter of law.
reviewing the motion, the Court finds that International
Paper's Motion for Summary Judgment should be
granted. In the instant motion, International Paper
takes the position that because it was Long's
"statutory employer, " Plaintiffs' sole remedy
is through the Louisiana Workers' Compensation Act. Doc.
22-2, p. 9. While Plaintiffs' do not dispute that
International Paper was Long's statutory employer, they
do argue that an intentional act occurred because
International Paper knew that death and/or seriously bodily
injury was substantially certain to follow from its conduct,
whatever its desire may have been to that result. Doc. 26, p.
7, 10. Under the Louisiana Workers' Compensation Act, an
employee is limited to the remedies provided in the act for
any claims an employee has arising out of injuries he
allegedly sustained during the course and scope of his
employment under his statutory employer. La. R.S. 23:1032. In
effect the "statutory employer" is immune from tort
liability as if it is the actual employer. Id.
However, there is an exception for intentional acts committed
by the employer or statutory employer. Id.
Fifth Circuit has stated that a person acts intentionally if
"the person either (1) consciously desires the physical
result of his act, whatever the likelihood of that result
happening from his conduct; or (2) knows that that result is
substantially certain to follow from his conduct, whatever
his desire may be as to that result." Swope v.
Columbian Chemicals Co.281 F.3d 185, 195
(5th Cir. 2002). Furthermore, in accord with the
jurisprudence from the Louisiana Supreme Court, the Fifth
Circuit defined "substantially certain to follow"
as requiring "more than a reasonable probability that an
injury will occur" and "'certain' has been
defined to mean 'inevitable' or 'incapable of
failing.'" Romero v. Northrop Grumman Corp.44 Fed.Appx. 654, *3 (5th Cir. 2002) (quoting
Reeves v. Structural Pres. Sys., 731 So.2d 208, 213
(La. 1999). Finally, the appellate court states that "a
distinguishing feature in determining whether the conduct
complained of meets the ...