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Walton v. Guidry

Court of Appeals of Louisiana, First Circuit

January 4, 2018


         Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No. 2013-0003330 The Honorable Robert H. Morrison, Judge Presiding

          Gregory E. Bodin Christopher M. Vitenas Baton Rouge, Louisiana Counsel for Third Party Defendant-Appellant Louisiana Workers' Compensation Corporation

          Henry H. LeBas F. Douglas Ortego Lafayette, Louisiana Counsel for Third Party Plaintiffs-Appellees Original USA General Labor, LLC and American Interstate Insurance Company


          THERIOT, J.

         Louisiana Workers' Compensation Corporation ("LWCC") appeals the judgment of the Twenty-First Judicial District Court granting summary judgment in favor of Original USA General Labor, LLC ("Original USA") and its insurer, American Interstate Insurance Company ("AIIC"). For the following reasons, we affirm.


         A-Port, LLC ("A-Port") is a shorebase facility located in Grand Isle, Louisiana that provides crane, forklift, storage, and other services to its customers by transporting inbound and outbound equipment and materials. Occasionally, A-Port requires additional personnel when its permanent employees are on leave or there is an increased demand for services by customers. On June 20, 2012, A-Port entered into a letter agreement with Original USA in which Original USA agreed to provide riggers to A-Port for a fixed rate of $23.00 per hour.

         Willie Walton ("Mr. Walton") was hired by Original USA to work as a rigger beginning on May 23, 2011, and was assigned to provide labor services to businesses in the Lafourche/Terrebonne Parish areas. Mr. Walton worked at the A-Port facility from October 20, 2012, until the day he was injured, October 31, 2012. Mr. Walton was injured while assisting the crane operator, Dustin Guidry, in the loading of an industrial mud tank onto a flatbed trailer. Another employee, Clint Givens, was also assisting with loading the mud tank. During this process, Mr. Walton suffered injuries to his left foot and ankle.

         Mr. Walton filed a tort suit against Mr. Guidry, Mr. Givens, and A-Port, alleging that the accident and his injuries were caused by the negligence of A-Port and its employees. The defendants in that case filed a motion for summary judgment, contending that they were entitled to judgment as a matter of law on the basis that A-Port was a borrowing employer and, thus, immune from tort liability. The trial court granted their motion for summary judgment, finding there was no issue of material fact that Mr. Walton was the borrowed employee of A-Port and that Mr. Walton's right of recovery was therefore limited to workers' compensation. Upon appeal, this Court affirmed the trial court's findings and held that Mr. Walton was a borrowed employee of A-Port. See Walton v. Guidry, 2015-0196 (La.App. 1 Cir. 9/18/15); 2015 WL 5515725 (unpublished).

         Thereafter, Original USA and its insurer, AIIC, sought and obtained permission to file a petition as intervenors for a third-party demand against A-Port and A-Port's workers' compensation insurer, LWCC. In their third-party demand, Original USA and AIIC alleged that a contract existed between Original USA and A-Port that required A-Port (as a borrowing employer) and LWCC to reimburse Original USA and AIIC for the Longshore & Harbor Workers' Compensation Act[1] ("workers' compensation") benefits and to assume responsibility for the payment of future workers' compensation benefits to Mr. Walton.

         On August 10, 2016, LWCC filed an answer to Original USA and AIIC's third party demand, along with a reconventional demand seeking a declaratory judgment that the written contract between A-Port and Original USA barred Original USA and AIIC from seeking reimbursement or recovery of workers' compensation benefits paid from A-Port or LWCC. On August 24, 2016, Original USA and AIIC filed a motion for summary judgment. In their motion, Original USA and AIIC alleged that LWCC was the responsible carrier on Mr. Walton's workers' compensation claim. Specifically, Original USA and AIIC argued that because A-Port was a borrowing employer, LWCC (as A-Port's workers' compensation insurer) was required to pay the workers' compensation benefits of Mr. Walton and to reimburse AIIC for any workers' compensation benefits it had already paid to Mr. Walton. Original USA and AIIC further argued that because the contract contained no valid and enforceable indemnification agreement, no "waiver of subrogation, " and no reference to "alternate employer coverage, " LWCC was the responsible carrier on this claim. Original USA and AIIC based their arguments primarily on the holding of Sanchez v. Harbor Const. Co., Inc., 2008-0316 (La.App. 4 Cir. 10/1/08); 996 So.2d 584, writ denied, 2008-2572 (La. 1/9/09); 998 So.2d 720.

         In its memorandum in opposition to Original USA and AIIC's motion for summary judgment, LWCC argued that the contract between Original USA and A-Port required that Original USA procure workers' compensation insurance to all Original USA payroll employees, including Mr. Walton. In support of this argument, LWCC points to the contract that provided the hourly rate for riggers, which stated that the hourly rate "includes Original USA General Labor providing the required General Liability and Workers Compensation Insurance for our personnel." LWCC further argued that the AIIC policy issued to Original USA contained an alternate employer endorsement, which, along with the pay rate information, indicates that A-Port would be insured for its compensation obligations as Walton's borrowing employer and that recovery would be waived against the insurer of the borrowing employer. LWCC argued that Original USA and AIIC were therefore not entitled to summary judgment. AIIC argued in response that the alternate employer endorsement proffered by LWCC would not take effect unless there was a contractual requirement to trigger it. AIIC argued that there was no such trigger in the present case.

         On November 29, 2016, the trial court granted the motion for summary judgment filed by Original USA and AIIC, dismissing the claims asserted by LWCC in its reconventional and third party demands. On January 6, 2017, the trial court amended its judgment and certified the judgment as final for appeal purposes pursuant to La. C.C.P. art. 1915(B).

         This appeal followed.


         Appellant assigns the following as error:

(1) The Trial Court erred in ruling that LWCC is the responsible carrier for Walton's LHWCA benefits when A-Port is an additional insured under Original USA's policy with AIIC, which further states that AIIC will not pursue LWCC as insurer of A-Port, the ...

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